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Croskey v. Summa Health Systems3/20/2002
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellants, Jane Croskey, et al., ("Croskey"), appeal from the decision of the Summit County Court of Common Pleas, granting summary judgment to appellee, Dr. David Shewmon. We affirm.
On September 8, 1999, Croskey filed a complaint in case number 1999 09 3566 ("second action") in which medical malpractice was alleged. The action had originally been filed under case number 1998 03 1332 ("first action"). In the first action, on February 23, 1999, Croskey voluntarily dismissed Dr. Shewmon pursuant to Civ.R. 41(A); the dismissal was without prejudice, and the action continued as to the other parties. In the second action, Croskey refiled the case to include Dr. Shewmon. However, Dr. Shewmon was not served in the second action until October 3, 2000. On December 19, 2000, Dr. Shewmon moved for summary judgment, asking that the court dismiss Croskey's complaint because it had not been timely commenced. On July 10, 2001, the trial court granted Dr. Shewmon's motion, finding that since Dr. Shewmon was not served within one year, the action was not timely commenced regarding Dr. Shewmon. This appeal followed.
Appellants assert one assignment of error:
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS, WHEN IT RULED THAT A VOLUNTARY DISMISSAL OF FEWER THAN ALL DEFENDANTS CONSTITUTED A "FAILURE OTHERWISE THAN UPON THE MERITS" FOR PURPOSES OF OHIO REV. CODE SEC. 2305.19, AND GRANTING DR. SHEWMON'S MOTION FOR SUMMARY JUDGMENT.
In the assignment of error, Croskey asserts that the trial court erred in holding that the action was dismissed as to Dr. Shewmon on February 23, 1999. Rather, Croskey argues that, pursuant to Civ.R. 41(A), a voluntary dismissal of one defendant is not final until the entire action is terminated as to all defendants. We disagree.
Pursuant to Civ.R. 56(C), summary judgment is proper if: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
Appellate review of a lower court's entry of summary judgment is de novo, applying the same standard used by the trial court. McKay v. Cutlip (1992), 80 Ohio App.3d 487, 491. The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements of the nonmoving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The movant must point to some evidence in the record of the type listed in Civ.R. 56(C) in support of his motion. Id. Once this burden is satisfied, the nonmoving party has the burden, as set forth in Civ.R. 56(E), to offer specific facts showing a genuine issue for trial. Id. The nonmoving party may not rest upon the mere allegations and denials in the pleadings but instead must point to or submit some evidentiary material that shows that a genuine dispute over the material facts exists. Henkle v. Henkle (1991), 75 Ohio App.3d 732, 735.
When only legal questions are involved, as in this case, an appellate court does not afford the trial court any special deference when reviewing a summary judgment determination.
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